Addressing Romantic Relationships in the Workplace Through a Conflict of Interest Policy

By Michael J. Wietrzychowski

With the continued media exposure of highly charged complaints of sexual harassment in the workplace, many employers have experienced an uptick in the number of administrative actions and lawsuits alleging sexual harassment. Employers concerned about workplace romantic relationships often fail to address them because they feel reluctant to appear overly intrusive. To alleviate this concern, an alternative to crafting a specific workplace dating policy is for an employer to expand its conflict of interest policy to cover workplace romantic relationships in the same manner as it would apply to any other workplace relationship where the potential for a conflict exists.

Are Consensual Romantic Relationships in the Workplace Sexual Harassment?

Of course the answer is no. By way of example, the U.S. Equal Employment Opportunity Commission defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” Consensual relationships in the workplace that do not include promises or threats, real or perceived, generally are not considered sexual harassment under the law. But as with any romantic relationship, workplace relationships also are not always destined to last. At times, the behavior of a party after a romantic relationship has ended can rise quickly to the level of “unwelcome,” even if the same conduct had once been welcomed. A claim of sexual harassment can ensue if the employer learns or should know of the unwelcome conduct but fails to address it. Simply put, office romances create risk.

How Should Employers Address Romantic Relationships in the Workplace?

Let’s face it – in today’s world, many people meet their significant other in the workplace. No policy can prevent office romances, although some employers have tried by imposing strict “no dating” policies. Our experience with policies forbidding dating is that they are almost impossible to enforce equitably, tend to chill the reporting of sexual harassment, and/or adversely affect employee morale by making the employer appear like Big Brother to employees (and to the outside world once someone anonymously posts the policy on social media). A better approach is to avoid policies that punish consensual romantic relationships, and instead, to implement policies that address the actual and perceived conflicts of interest that can arise out of romantic relationships in the workplace – while strictly enforcing policies against unlawful harassment.

What is a Conflict of Interest in the Workplace?

An internet search of “conflict of interest” returns a myriad of definitions, some rising to the level of multi-page sections of state and federal statutes and regulations. However, in its simplest workplace form, a conflict of interest is a situation where an employee’s duty to her employer is or could be compromised by self-interest or the interests of another – including those of another employee with whom she is romantically involved. Conflicts of interest in the workplace, or their appearance, can arise from many types of relationships. Some are patently evident, such as a salesperson who sells a competing company’s product while employed by another, or a procurement manager who negotiates a vendor contract with his brother’s office supply firm. These are conflicts that the employer should expect the employee to report, and in the latter case, the vendor as well. But what about relationships where the apparent conflict of interest is more subtle, such as where:

• An employee supervises a friend to whom she rents an apartment;
• A manager hires a fellow congregant from a close-knit, 50-member church that is their primary social and spiritual circle;
• A manager supervises an employee whose family employs the manager’s wife.

Although the above relationships appear to create the potential for conflicts of interest, they would likely go unreported to an employer that did not impose a duty on its employees to report such relationships. Moreover, what makes these relationships problematic for the employer isn’t necessarily the relationship itself, but rather, the workplace roles these employees have relative to each other. Workplace romantic relationships create a similar potential for conflict as in the examples above.

Do All Romantic Relationships in the Workplace Create Conflicts of Interest?

Not always. The answer depends on the size of the company and the role, as well as the influence and input an employee has relative to her romantic partner. For example, a conflict of interest clearly arises where a supervisor has direct input into the terms and conditions of employment of her romantic partner. But the potential for conflict of interest is not limited to a direct reporting relationship. For example, an actual or perceived conflict of interest could arise where a CFO provides input into the budget of a department where her romantic partner works, or where a VP of Operations has input into a reduction of force that could affect the department where his romantic partner works.

Tips on Drafting a Conflict of Interest Policy

Like all policies, a workplace relationship policy should provide the rationale for its adoption (here, it is the potential for conflicts, perception of unfairness, etc.), the action or conduct expected from the employees under the policy, and the potential discipline for violating the policy. A sound conflict of interest policy covering workplace romantic relationships includes the following:

• Purpose of policy (avoid conflicts of interest or their appearance, and promote fairness in the workplace);
• Definition of conflict of interest;
• Examples of relationships that likely cause conflicts of interest or their appearance (e.g., supervisor/subordinate relationship);
• Requirement that both parties to a romantic relationship immediately report it to allow the employer to determine whether the potential for conflict exists;
• Process for reporting such relationships by participants and other employees;
• Penalties for failing to report;
• Explanation of the process for addressing and resolving the potential for conflicts of interest (e.g., meeting with human resources, drafting plan to eliminate the potential for conflicts of interest);
• Statement that employees in a consensual romantic relationship remain protected by other policies, such as anti-harassment policies, if they believe their rights are violated in the future;
• Statement that parties to a workplace romantic relationship must continue to abide by rules of professionalism and decorum;
• Statement that the policy should not be interpreted to interfere with employees’ rights under federal, state or local laws.

As many employers are limited by federal or state laws in the implementation of new or revised policies, they must be aware of the laws that may govern their ability to do so and take steps to comply with any such laws before implementing a new or revised policy.